Understanding Conflicts Of Interest On The MPRE
One of the most highly-tested issues on the MPRE is Conflicts of Interest. In this post, we break down the types of Conflicts of Interest and give you a general overview of the different types so that you understand this topic for the MPRE!
Understanding Conflicts Of Interest On The MPRE
This article is intended to provide an overview of the different types of conflicts of interest that are tested on the MPRE. For a complete explanation, check out our other MPRE resources, including our Free MPRE Course!
Current Client Conflicts
Most students are under the misconception that a current client conflict only exists where parties are opposing each other within the same lawsuit. This is simply not the case and current client conflicts are much broader than this.
There are two types of “current client” conflicts:
One current client has a position that is directly adverse to another current client. This could be completely unrelated lawsuits. For instance, if a lawyer represents a man in a business transaction, and then represents the man’s wife in a divorce action, the man and the wife are both current clients and their positions are directly adverse in the divorce action. Therefore, a conflict would exist and the lawyer would not be permitted to represent both the man in the business transaction and the wife in the divorce action simultaneously.
There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or by a personal interest of the lawyer. For instance, if a group of five friends approach a lawyer and ask the lawyer to help them form a business, the lawyer may be materially limited in his or her ability to advocate all possible positions that each friend might take (because what is in the best interest of one friend may be disadvantageous to the others).
For purposes of conflicts of interest, lawyers at a firm are all treated as one lawyer. Therefore, if one lawyer is conflicted from representing a client due to a conflict, all the lawyers at the firm are conflicted (unless the conflicted lawyer can be “screened” from the matter).
Former & Prospective Client Conflicts
When a lawyer’s representation of a client is complete so that the individual is now a “former” client rather than a “current” client, the applicable standard for conflicts of interest is slightly different.
The Model Rules of Professional Conduct prohibit a lawyer from representing another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of a former client, unless the former client gives informed consent, confirmed in writing.
The important difference to note is that for current clients, the two matters the lawyer is representing each client on can be completed unrelated; however, if the clients’ positions are directly adverse in either one of those actions, then a conflict exists. For former client conflicts, on the other hand, the matters must be the same or substantially related.
It may be helpful to remember that the same standard that applies to former clients also applies to prospective client conflicts. A prospective client is a person who consults with the lawyer about a matter, but never officially enters an attorney-client relationship. When this occurs, a lawyer may not represent a client with interests that are materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that prospective client in the matter.
Additionally, this standard applies if the former client was a client of the lawyer’s former firm (e.g., the lawyer worked at Firm A, where Client X was a client; and the lawyer now works at Firm B). However, it only applies if the lawyer acquired confidential information about the client while at the former firm. This is a fairly low standard: if the lawyer had access to client files (even if he didn’t work on a particular matter), the lawyer is deemed to have gained confidential information about that client.
Both former client conflicts and prospective client conflicts are imputed to other lawyers at the conflicted lawyer’s firm. This means that, even though other lawyers at the firm might not have had any contact whatsoever with the former or prospective client, they are presumed to have accessed the information about the former or prospective client and, thus, they are also conflicted from being able to represent a client in the same or a substantially related matter.
When a lawyer previously worked for the government and now works in private practice, or when a lawyer formerly worked in private practice and now works for the government, the government was (or is) the lawyer’s client for purposes of determining whether a conflict exists. In such a scenario, the lawyer is prohibited from representing a client (either the government or a private client) in connection with a matter in which the lawyer participated personally and substantially unless the government provides informed consent in writing.
Essentially, this means that a conflict only exists as far as the exact same matter is concerned. So, a lawyer cannot work on a matter on behalf of the government and then switch to private practice where that lawyer works on the exact same matter from the other side. Furthermore, a conflict only exists where the lawyer participated personally and substantially in the matter. In other words, these types of conflicts are not generally imputed to other lawyers in a firm or office.
Conflicts Between the Attorney and the Client
The Model Rules of Professional Conduct also contemplate specific scenarios (and provide specific rules for each scenario) where a conflict exists between the lawyer (who is personally interested in some way) and a current client. For these rules, it is best to be familiar with the different scenarios and the applicable rule for each!
Business Transactions with Client: a lawyer is not permitted to enter a business transaction with a client unless the transaction and the terms are fair and reasonable to the client, the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel, and the client gives informed consent in writing. This does not apply to ordinary transactions (like a lawyer who represents a grocery store may still shop at that store like any other customer!). But this would apply if, say, the lawyer wanted to sell a client his car!
Using Information for Personal Gain: a lawyer is not permitted to use information relating to the representation of a client to the disadvantage of the client, unless the client gives informed consent.
Soliciting Gifts from Clients: A lawyer shall not solicit a gift from a client. This includes a testamentary gift (gift given via will), unless the lawyer (or gift recipient) is related to the client. So a lawyer could not agree to draft a will for a stranger if the stranger wanted to give a gift to the lawyer or a person related to the lawyer. But the lawyer could draft a will for her father even if, for example, he left a gift to their child.
Media Rights: A lawyer shall not make or negotiate an agreement giving the lawyer media rights to a portrayal or account based in substantial part on information relating the representation. NOTE: this is prohibited, even if the client consents, and even if the client gets advice from outside counsel before agreeing to the transfer of media rights! The purpose of this is to discourage the lawyer from trying to sensationalize the story.
Financial Assistance: A lawyer shall not provide financial assistance to a client in connection with pending litigation, with the exception that a lawyer can advance court costs.
Compensation from a Third Party for Representation: A lawyer shall not accept compensation for representing a client from one other than the client unless the client gives informed consent, there is no interference with the lawyer’s independence or professional judgment or with the attorney-client relationship, and information relating to the representation of the client is kept confidential. Generally, this comes up when a parent wants to pay for his or her minor child to have representation. The attorney represents the minor, not the parent, and confidentiality must be preserved.
Aggregate Settlement Agreements: A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent in writing.
Malpractice Liability: A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement. NOTE: the client has to actually meet with independent counsel; it is not enough that the client be given the opportunity to meet with independent counsel! Similarly, a lawyer shall not settle a claim for liability (e.g., malpractice liability) with an unrepresented client unless the client is advised of the desirability of seeking the advice of independent counsel and is given a reasonable opportunity to seek such advice.
Acquisition of Proprietary Interest: A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client. NOTE: Proprietary essentially means “ownership”. A lawyer who is paid a portion of the client’s profits does not acquire a “proprietary” interest.
Sexual Relationship: A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the relationship commenced. Some states have different rules, so don’t confuse the ABA Model rule with your state’s rule!
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